The Supreme Court Committee on Judicial Ethics Opinions (CJEO) issued an opinion on how judges can properly engage on social media sites such as Facebook, Twitter, and Instagram. But a new and traditional media lawyer believes judges should avoid social media activity entirely.
“Judges ought to be affirmatively discouraged as I believe they have been in the past from using social media at all,” said Doug Mirell, an attorney with Greenberg Glusker law firm in Los Angeles. “Whether they will encourage people to comment favorably about them or not, that possibility clearly exists and that's the raison d'etre for social media platforms in the first place, which is to encourage the exchange of communications.”
The advisory opinion was in response to a question from a judicial officer about making statements on Facebook concerning legislation related to the law, the legal system, and the administration of justice, according to a press release.
“The kind of conduct that has been facilitated by the existence of social media, from cyberbullying to harassment and extortion to death threats, has not been particularly healthy for an environment of free discussion,” Mirell said. “Only recently have these platforms decided that it is in their self-interest to try to regulate themselves more rigorously but I’m afraid that those efforts may be too little too late.”
Mirell, a Section 230 of the Communications Decency Act specialist, regularly reviews the internet to identify intellectual property rights infringements and potential publication tort claims.
“There is seemingly now some level of bipartisan support in Congress for reforming Section 230 in ways that will limit, at the very least, the blanket immunity that these social media services have been accorded,” he said.
In its opinion, CJEO offers the following six guidelines for judges to follow. Statements must not:
Undermine public confidence in the judiciary or suggest bias.
“What they mean to suggest is that comments by judges should not reflect bias on their part,” Mirell said. “For another committee to be investigating the nature and extent to which there may exist bias, systemic, or otherwise within the judicial system, isn't inconsistent with a message that says expressions of bias by judges is abhorrent.”
The committee Mirell refers to is the Work Group to Enhance Administrative Standards Addressing Bias in Court Proceedings created by Chief Justice Tani G. Cantil-Sakauye in November 2020.
Relate to pending matters or potential pending matters.
“It's meant to act as a sort of limitation, not an invitation, to judges when they seek to speak using these more modern forms of communication,” Mirell said.
Stray into unlawful activities or demean the judicial office
“That too is consistent with the existing canons of judicial ethics that apply to all judges and what is meant to be avoided is the actuality, as well as the appearance, of partiality,” Mirell said.
Constitute prohibited political activities
“At a minimum, what would be frowned upon is commenting upon contested partisan elections and issues, such as the forthcoming recall election of Gov. Newsom,” Mirell said. “Those would be obvious political activities.”
Convey a special position of influence or use the title to promote the interests of others
“That's intended, I think, to put a lid on judges using their title in order to try to curry special favors,” Mirell said.
Interfere with the performance of judicial duties
“It would be ethically improper for a judge, for example, to encourage counsel to comment favorably upon postings on social media platforms,” he added.